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Court of Appeals holds that “child’s play on the beach” does not constitute “other outdoor recreational use” under Michigan’s Recreational Land Use Act

07.02.2017 by Law Firm of Seglund Gabe Pawlak Groth & Kelley in Legal Updates, Litigation

Court of Appeals holds that “child’s play on the beach” does not constitute “other outdoor recreational use” under Michigan’s Recreational Land Use Act and allows a minor’s claim for injuries sustained after stepping on hot coals to proceed against the landowner under a common law negligence theory.  

Michigan’s Recreational Land Use Act, MCL 324.73301(1) (“RUA”), immunizes landowners from liability associated with specified recreational activities. The statute provides that if you are on someone else’s land without having paid to be there, “for the purpose of fishing, hunting, trapping, camping, hiking, sightseeing, motorcycling, snowmobiling, or any other outdoor recreational use or trail use,” the landowner has no liability unless the injuries were caused by the gross negligence or willful and wanton misconduct of the landowner.

However, in the recent unpublished decision in Otto v Inn at Watervale, Inc., Docket No. 330214, January 17, 2017, the Michigan Court of Appeals held that a young girl who was walking on the beach at Defendant’s resort, and apparently had stepped on incompletely burned coals remaining from a prior beach fire, was not barred by the RUA from proceeding with her common law negligence claim against the Defendant resort.  The young girl and her friend were playing on the beach while the injured girl’s parents sat on a blanket not far away, reading.  The girls had been “building sand castles, throwing stones in the water, splashing around” for about an hour when one of the girls was walking on the beach and stepped onto some hot coals and burned her foot.

The trial court had granted summary disposition in favor of Defendant landowner on the basis that the protections of the RUA applied to the activities of the plaintiff because such activities constituted “other outdoor recreational use” under the RUA. The Court of Appeals disagreed.

The Court of Appeals’ analysis focused on contrasting “child’s play on a beach” with “higher-intensity” activities such as hunting, trapping and fishing which had greater “inherent risks.” The Court likewise refused to consider “child’s play on the beach” as being of the same kind, class or character as such higher intensity activities as “camping, hiking, or sightseeing.”  However, the Court did not offer to explain how someone walking on the beach was different than someone who was “hiking or sightseeing”, two activities that are specifically identified in the statute as falling within the protection of the RUA.

The Court’s decision is troubling in that it calls into question the scope of the protection seemingly afforded landowners by the RUA. It will be interesting to see if the Defendant landowner seeks review of the matter by the Michigan Supreme Court.

At Seglund Gabe Pawlak Groth & Kelley, PLC, our real estate attorneys are experienced in litigation involving all aspects of the ownership of real property, both at the trial and appellate levels. Contact us if you find yourself needing to consult with or retain an experienced real estate attorney.

 
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